B-143633, MAR. 23, 1961

B-143633: Mar 23, 1961

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TO BROWN EXPRESS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 25. FOR THIS SERVICE YOU ORIGINALLY BILLED AND WERE PAID $281.08. UPON AUDIT BY THIS OFFICE IT WAS DETERMINED THAT THE CHARGE SHOULD HAVE BEEN IN THE AMOUNT OF $238.99. THE DIFFERENCE OF $42.09 WAS SUBSEQUENTLY DEDUCTED FROM MONIES OTHERWISE DUE YOU. YOUR CLAIM FOR THE AMOUNT OF THE DEDUCTION IS BASED ON THE FIRST CLASS RATING PROVIDED BY ITEM 4790. OUR DEDUCTION WAS BASED ON THE FACT THAT GOVERNMENT BILL OF LADING NO. FOR THE REASON THAT THE SHIPMENT INVOLVED WAS AN INTRASTATE SHIPMENT AND THEREFORE DECISIONS BY THE INTERSTATE COMMERCE COMMISSION ARE NOT CONTROLLING. THE TARIFF PROVISIONS INVOLVED HERE WERE ALSO INVOLVED IN THAT CASE.

B-143633, MAR. 23, 1961

TO BROWN EXPRESS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 25, 1960, IN WHICH YOU REQUEST A REVIEW OF THE SETTLEMENT CERTIFICATE DISALLOWING YOUR CLAIM ON BILL NO. 7146-A FOR ADDITIONAL FREIGHT CHARGES ON A SHIPMENT OF INTERNAL COMBUSTION AIRCRAFT ENGINES, WHICH MOVED FROM DEL RIO, TEXAS, TO DALLAS, TEXAS, DURING MAY 1958, UNDER GOVERNMENT BILL OF LADING NO. AF 8167549. FOR THIS SERVICE YOU ORIGINALLY BILLED AND WERE PAID $281.08, ON THE BASIS OF A FIRST CLASS RATE; BUT UPON AUDIT BY THIS OFFICE IT WAS DETERMINED THAT THE CHARGE SHOULD HAVE BEEN IN THE AMOUNT OF $238.99, COMPUTED AT A CLASS 85 RATE, AND THE DIFFERENCE OF $42.09 WAS SUBSEQUENTLY DEDUCTED FROM MONIES OTHERWISE DUE YOU.

YOUR CLAIM FOR THE AMOUNT OF THE DEDUCTION IS BASED ON THE FIRST CLASS RATING PROVIDED BY ITEM 4790, OF SOUTHWESTERN MOTOR FREIGHT BUREAU TARIFF NO. 25-F, MF-I.C.C.NO. 274, WHICH ESTABLISHES A COMMODITY OR EXCEPTION RATING ON SHIPMENTS OF RADIAL CYLINDER OR JET PROPULSION TYPE INTERNAL COMBUSTION ENGINES, N0I. OUR DEDUCTION WAS BASED ON THE FACT THAT GOVERNMENT BILL OF LADING NO. AF 8167549 BORE THE ANNOTATION "RELEASED AT HIGHEST VALUE APPLICABLE TO LOWEST CLASSIFICATION RATING," AND APPLYING THE RULE OF UPJOHN COMPANY V. PENNSYLVANIA R.R. CO., ET AL., 306 I.C.C. 325, WE COMPUTED THE RATE IN ACCORDANCE WITH THE CLASS 85 RATING PROVIDED BY ITEM NO. 61244 OF NATIONAL MOTOR FREIGHT CLASSIFICATION NO. 14.

IN YOUR LETTER OF JULY 25, 1960, YOU TAKE EXCEPTION TO THE BASIS EMPLOYED BY US, FOR THE REASON THAT THE SHIPMENT INVOLVED WAS AN INTRASTATE SHIPMENT AND THEREFORE DECISIONS BY THE INTERSTATE COMMERCE COMMISSION ARE NOT CONTROLLING. YOU CONTEND FURTHER THAT ITEM NO. 4790 OF SOUTHWESTERN MOTOR FREIGHT BUREAU TARIFF NO. 25-F, MF-I.C.C.NO. 274, SPECIFICALLY REMOVES THE APPLICATION OF CLASSIFICATION RATES.

IN OUR DECISION DATED FEBRUARY 10, 1961, B-144420, WE CONSIDERED YOUR REQUEST FOR REVIEW OF THE DISALLOWANCE OF YOUR CLAIMS ON BILLS NO. 7911-B AND NO. 7911-C WHICH ALSO CONCERNED AN INTRASTATE SHIPMENT OF INTERNAL COMBUSTION ENGINES. THE TARIFF PROVISIONS INVOLVED HERE WERE ALSO INVOLVED IN THAT CASE. YOU HAD RAISED POINTS SIMILAR TO THE ONES RAISED IN THE INSTANT CLAIM, AND IN OUR REPLY WE OUTLINED THE REASONS WHY WE CONSIDER THE CONCLUSION REACHED BY THE INTERSTATE COMMERCE COMMISSION IN THE UPJOHN CASE TO BE FOR APPLICATION IN CASES INVOLVING THE SHIPMENT OF GOODS IN INTRASTATE COMMERCE. A COPY OF THE DECISION ABOVE IS ENCLOSED FOR YOUR READY REFERENCE.

ACCORDINGLY, OUR SETTLEMENT OF JULY 19, 1960, WHICH DISALLOWED YOUR CLAIM FOR $42.09 ON BILL NO. 7146-A, IS HEREBY SUSTAINED.